Free Market Criminal Justice How Democracy and Laissez Faire Undermine the Rule of Law

Free Market Criminal Justice offers a critique of the ideology behind the US criminal justice system. It argues that the distinctive ideology shaping American criminal processes is a commitment to a set of values in institutional design as divided into two categories - "democracy" and "markets". Here, democracy describes the ideas and practices of politically responsive, popularly accountable governance. Markets refers to norms, premises and mechanisms of private ordering in contrast to public management; competition between private agents acting for self-interest. Arguing against recent attempts to re-invigorate democratic processes in criminal justice, this book claims that there are significant downsides to a criminal justice system that favors democratic processes over legal regulation. The commitment to democracy has undermined the rule of law in American criminal justice resulting in mass incarceration and wrongful convictions, particularly as institutional democracy goes hand in hand with the development of market-inspired mechanisms. This book concludes with proposals for reforms to rebuild the rule of law in the criminal process.

Darryl K. Brown is the O. M. Vicars Professor of Law at the University of Virginia, and the E. James Kelly, Jr. Class of 1965 Research Professor of Law. He specializes in criminal law, criminal adjudication, and evidence. Previously, he was the Class of 1958 Alumni Professor of Law at Washington and Lee University School of Law. Professor Brown clerked for Chief Judge Dolores K. Sloviter of the U.S. Court of Appeals for the Third Circuit. He was also an associate at Kilpatrick & Cody in Atlanta, and an assistant public defender in Clarke County, Georgia.